US v. Pleier, A93-113 CR (JWS).

• Decision Date: 25 April 1994
• Docket Number: No. A93-113 CR (JWS).,A93-113 CR (JWS).
• Citation: 849 F. Supp. 1321
• Parties: UNITED STATES of America, Plaintiff, v. Carl PLEIER, Defendant.
• Court: U.S. District Court — District of Alaska

849 F. Supp. 1321

UNITED STATES of America, Plaintiff, v. Carl PLEIER, Defendant.

No. A93-113 CR (JWS).

United States District Court, D. Alaska.

April 25, 1994.

Crandon Randell, Asst. U.S. Atty., Anchorage, AK, for plaintiff.

Mary C. Geddes, Asst. Public Defender, Anchorage, AK, for defendant.

ORDER FROM CHAMBERS

SEDWICK, District Judge.

MOTIONS PENDING

N. Ray Kalyan and Carl Pleier are defendants in two unrelated criminal prosecutions: United States v. N. Ray Kalyan, Case No. A93-112 CR (JKS)¹ and United States v. Carl Pleier, Case No. A93-113 CR (JWS).² Each was indicted by the same grand jury. Messrs. Kalyan and Pleier are represented by the same attorney. Each has filed a motion pursuant to 28 U.S.C. § 1867(a) and (d) which challenges the Plan of the United States District Court for the District of Alaska for the Random Selection of Grand and Petit Jurors ("Plan"). The motions and related briefing are virtually identical.³

Each defendant seeks dismissal of his indictment on the grounds that the venire from which the grand jury was selected pursuant to the Plan was not comprised of a fair cross-section of the community and, therefore, substantially failed to comply with the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq. ("the Act") and violated the Sixth Amendment to the Constitution. In a similar vein, each defendant argues that the venire from which his petit jury would be drawn would be constituted under the Plan in a manner which fails to comply with the Act and violates the Sixth Amendment. Each defendant requests a stay of proceedings until a properly drawn petit jury panel can be assembled. An evidentiary hearing relating to these matters is requested.

Each defendant has renewed his motion to disqualify all judges of this district and, in addition, has requested disclosure of all communications between the assigned judge and any other judge and clerk or deputy clerk of the district.⁴ Finally, each defendant has joined with the Alaska Native Justice Center to renew its motion to file an amicus curiae brief.⁵

No party has requested oral argument on any of the motions. The principal issues have been extensively briefed, and the court does not believe that oral argument would be of material assistance to its determination of the motions.

THE PLAN

Passage of the Act in 1968 required the district courts of the United States to introduce a degree of uniformity in the methods used to select persons to serve on grand and petit juries.⁶ Alaska, like other districts, soon adopted a plan for the random selection of jurors pursuant to the Act. In September 1968, the original Plan received final approval from the Ninth Circuit. The Plan took effect on December 22, 1968. There have been several amendments to the Plan since 1968. As presently in effect, the Plan consists of a restated version dated May 19, 1989, together with the 1993 amendments thereto.⁷

Certain features of the Plan have remained constant since 1968. Perhaps the most fundamental is that the universe of persons to be considered for jury service consists of actual voters. The Plan has never provided for selection from registered voter lists and has never called for supplementing the list of voters with names drawn from another source. A second basic feature of the Plan is its provision for selection of grand jurors on a district-wide basis and petit jurors from the particular "division" within which the court will sit. The Plan creates five divisions which are used in the petit jury selection process: Anchorage, Fairbanks, Juneau, Ketchikan, and Nome. These divisions correspond to the five places where Congress has directed the court to convene. 28 U.S.C. § 81A. A third fundamental attribute is the Plan's use of election districts in place of counties or parishes, political subdivisions which do not exist in Alaska. Finally, the Plan operates in a district which, like other districts, is home to several groups of people. The groups include one peculiar to Alaska, Alaska Natives.

DISCUSSION

A. The Fair Cross-Section Standard.

Both the Sixth Amendment and the Act require that the venire from which a jury is chosen be comprised of a fair cross-section of the community. Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 697, 42 L.Ed.2d 690 (1975). "The test for a constitutionally selected jury is the same, whether challenged under the Sixth Amendment of the Constitution or under the Jury Selection and Service Act." United States v. Miller, 771 F.2d 1219, 1227 (9th Cir.1985). When Congress adopted the "fair" cross-section standard, it was cognizant that the standard did not mandate a precisely accurate cross-section:

The bill uses the term "fair cross section of the community" in order to permit minor deviations from a fully accurate cross section. The voting list need not perfectly mirror the percentage structure of the community. But any substantial percentage deviations must be corrected by the use of supplemental sources. Your committee would leave the definition of "substantial" to the process of judicial decision.⁸

B. The Duren Test.

In Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 666, 58 L.Ed.2d 579 (1979), the Supreme Court set out the criteria required to show a violation of the fair cross-section standard:

In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

1. Distinctive Groups.

Here, defendant contends that Alaska Natives constitute a distinctive group. Plaintiff does not controvert this assertion. The court agrees. See United States v. Atlantic Richfield Co., 435 F.Supp. 1009 (D.Alaska 1977), aff'd, 612 F.2d 1132 (9th Cir.), cert. denied, 449 U.S. 888, 101 S.Ct. 243, 66 L.Ed.2d 113 (1980); Alaska Natives And The Land, prepared by Federal Field Committee for Development Planning in Alaska (U.S.G.P.O.1968) at pp. 3-11. See also United States v. Brady, 579 F.2d 1121, 1131 (9th Cir.1978), cert. denied, 439 U.S. 1074, 99 S.Ct. 849, 59 L.Ed.2d 41 (1979) (American Natives are a distinctive group).

Defendant also contends that persons between the ages of 18 and 30 years are a distinctive group. Defendant cites no authority for this proposition and the case law compels a contrary conclusion. The Ninth Circuit has made it abundantly clear that such "young adults" are not distinctive groups for purposes of the Duren test. United States v. Fletcher, 965 F.2d 781, 782 (9th Cir.1992) (dealing with college students, but specifically noting that young adults are not a distinctive group); United States v. Kleifgen, 557 F.2d 1293, 1296 (9th Cir.1977); United States v. Potter, 552 F.2d 901, 905 (9th Cir.1977).⁹

2. Fair and Reasonable Relation to Numbers in Community.

a. Community.

Under the Plan grand juries are drawn from a district-wide venire, but petit juries are drawn from a venire limited to certain state election districts and precincts surrounding the towns in which the court sits. Defendant, who would be tried by a petit jury in Anchorage, says, "The relevant community for determining the representativeness on federal juries is the entire federal district, not merely the Anchorage division, which was created by judicial — not legislative — fiat."¹⁰ This rather shrill accusation of action by fiat can be read to suggest two distinct concerns. First, it implies that it would never be appropriate to select juries from a venire drawn from less than an entire judicial district. Second, if in some districts the venire need not be chosen from a district-wide source, the absence of divisions created by legislation for the District of Alaska compels a contrary conclusion.

With respect to the first point, defendant cites no authority for the proposition that the venire must come from the entire district. This is not surprising, for the case law is to the contrary. E.g., United States v. Herbert, 698 F.2d 981, 984 (9th Cir.1983), cert. denied, 464 U.S. 821, 104 S.Ct. 87, 78 L.Ed.2d 95 (1983). With respect to the second point, defendant says that Alaska is a single district with no legislatively created "divisions." While that much is correct, it must be added that the same statute which creates a single district mandates that, "Court shall be held at Anchorage, Fairbanks, Juneau, Ketchikan and Nome." 28 U.S.C. § 81A. The Act provides in pertinent part that juries are to be selected from a "fair cross section of the community in the district or division wherein the court convenes." 28 U.S.C. § 1861. Section 1869(e) specifically defines the operative term "division" to include, "in judicial districts where there are no statutory divisions, such counties, parishes, or similar political subdivisions surrounding the places where the court is held as the district court plan shall determine...." Defendant cites no authority to support his view which is demonstrably contrary to the language of the pertinent statutes.

Defendant next complains that in defining the geographical area from which Anchorage jurors are drawn, the Plan uses electoral divisions rather than "counties, parishes, or similar political subdivisions" as required by 28 U.S.C. § 1869(e). Assessment of this complaint must begin with the observation that there are no counties or parishes in Alaska.¹¹ To understand the reasons why the use of electoral divisions is an appropriate substitute for counties or parishes requires some background about both local government and the administration of justice in Alaska. To begin, it needs to be noted, although defendant does not mention the fact, that there are units of local government in...